Utility Patents

A key element of most intellectual property (IP) programs are patents.  For companies that sell goods, either apparatus or software, that is delivered to customers, patents are essential because when the item is in the hands of a customer, the item can be reverse-engineered, or just plain outright copied.  Any item can be copied, but mechanical devices and software are most vulnerable to copying.  For any item that has been copy-catted by another party, patent protection can be successful in obtaining damages, and sometimes even treble damages (for willful infringement).  A word of caution is the high rate at which patent claims are invalidated since passage of the 2011 “America Invents Act” that has made it much it easier for any party to prompt the US Patent and Trademark Office to review the validity of a patent.  Much care must be taken to draft and file patents in ways to reduce the chances of invalidity after issuance.  In addition, obtaining a number of issued patents, rather than just one patent or two patents, greatly increases that chance that at least one claim will survive validity challenges by accused infringers, and as the old saying of patent attorney goes, “you only need one good claim” to win a patent litigation lawsuit. The old days of just getting one patent and being safe from copy-cats is long gone because accused infringers have grown quite accustomed to fighting patent infringement lawsuits quite vigorously.

Utility patents have been a staple of protection for inventors and their companies in the U.S. since Thomas Jefferson was the first Commissioner of Patents.